Trimmer v. Melick , 36 Vroom 66 ( 1900 )

The opinion of the court was delivered by

Yaw Syckel, J.

This suit was instituted in the Court for the Trial of Small Causes, where judgment was rendered for 'Trimmer, the plaintiff in said suit. Thereupon an appeal was taken by Bonnell & Melick to the Hunterdon Common Pleas, where the judgment was affirmed. •

The defendant excepted to the charge of the trial judge in the Common Pleas, and had his bill of exceptions signed and ’brought the case into this court by writ of error.

He has assigned for error the charge of the court to which Ihe excepted.

The plaintiffs in error have mistaken their remedy in this •case.

A certiorari lies to the Common Pleas and Quarter Sessions ■ On judgments given on appeals into those courts, where not restrained by the act giving the appeal. Griff. L. R. 1175.

The Circuit Court act, as contained in the-revision under -the act of April 2d, 1845, to provide for revising the statute laws of the state, contains a provision that the judgments in the Courts of Common Pleas, upon appeals from Courts for the Trial of Small Causes, may be removed into the Circuit Court of the same county by writ of certiorari in like manner .and upon similar terms as such writs are now granted to remove similar matters into the Supreme Court. Rev. Stat. 1846, p. 201, § 4.

This section clearly recognizes the writ of certiorari as the .appropriate remedy to remove a judgment of the Pleas on appeal from the Justice’s Court into the Supreme Court.

It has been the uniform practice to review such judgments by writ of certiorari and not by writ of error.

The provision contained in the Small Cause act, as revised in 1846, is: “That no judgment, order or proceeding to be had or made by virtue of this act, shall be removed by writ of error, but by certiorari only.” Rev. Stat. 1846, p. 247, § 66.

The same provision is found in Rev. L. 1821, ¶. 642, § 46.

In Rev. Stat. 1846, ¶. 981, § 5, it is provided in the act respecting writs of error “that all errors happening in any Court of Common Pleas shall bo heard and rectified by the Supreme 'Court.”

This provision is also contained in Rev. L. 1821, p. 401, § 5, and is now section 6 of the acts respecting writs of error. Gen. Stat., p. 1391.

Section 4 of the Circuit Court act, above recited, is now section 11 of the Certiorari act. Gen. Stat., p. 369.

It seems to be clear from the language used in the fourth section of the Circuit Court act, before referred to (Rev. Stat. 1846, p. 201), that Peter D. Vroom, Henry W. Green, "William L. Dayton and Stacy G. Potts, the eminent jurists who revised the statutes in 1846, understood that judgments in the Court of Common Pleas, upon appeals from the Court of Small Causes, were to be reviewed by certiorari to the Supreme Court, notwithstanding the provision in the fifth section of the act concerning writs of error contained in Rev. L. 1821, p. 401, and that they did not intend to abrogate that rule by retaining the same provision in the revision of 1846.

, The construction which has been given in practice to this legislation is that certiorari and not writ of error lies to review judgments of the Common Pleas given on appeal to that court from judgments of the Court for the Trial of Small Causes, but where suits are originally instituted in the Court of Common Pleas the review in the Supreme Court is to be had by writ of error.

This settled practice, we think, should be adhered to, and therefore the writ of error in this case must be dismissed.